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§ 948.08, Causing Child to Practice Prostitution – Repeated Sex Acts in Exchange for Cocaine

State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08
For Payette: Robert R. Henak; Amelia L. Bizzaro

Issue: Whether repeated “dope dating” (giving a minor cocaine on multiple occasions in exchange for sex) amounts to causing the child to practice prostitution within the meaning of § 948.08.

Holding1: “Practice” prostitution:

¶15      Payette is charged with violating Wis. Stat. § 948.08, [7] which provides that: “Whoever intentionally solicits or causes any child to practice prostitution or establishes any child in a place of prostitution is guilty of a Class BC felony.” [8] (Emphasis added.) This statute, except for the reference to a child, and the level of punishment, is identical in language to Wis. Stat. § 944.32. …¶16      The term “prostitution” is defined in Wis. Stat. § 944.30(1) to include someone who intentionally “[h] as or offers to have or requests to have nonmarital sexual intercourse for anything of value.” (Emphasis added.) The complaint clearly establishes that RS had nonmarital sexual intercourse with Payette repeatedly in exchange for something of value, namely cocaine. Although there are no reported cases specifically construing Wis. Stat. § 948.08, such is not the case for application of its sister statute, Wis. Stat. § 944.32. In State v. Johnson, 108 Wis. 2d 703, 711-12, 324 N.W.2d 447 (Ct. App. 1982), we explained that under § 944.32, the meaning of causing a person “to ‘practice’ prostitution” is “‘to do or perform often, customarily, or habitually.’” (Citation omitted.) The habitual nature of Payette’s trading cocaine for sex with RS (over thirty times) satisfies the § 948.08 requisite that RS did “practice prostitution” with Payette.

Holding2: “Caused” prostitution:

¶17   As we discussed in , 170 Wis.  2d 676, 682-83, 489 N.W.2d 715 (Ct. App. 1992), a criminal result (death of a person) may occur because of more than one cause. …¶18   Wisconsin JI—Criminal 901 explains: “‘Cause’ means that the defendant’s conduct was a substantial factor in producing” the consequence at issue. (Emphasis added.) The instruction continues to explain that “[t]here may be more than one cause” (of the consequence at issue) and that “[t]he act of one person alone might produce it, or the acts of two or more persons might jointly produce it.” Id.

¶21      Payette focuses on only whether the complaint alleges “solicitation,” although that is only one of the two alternative types of conduct prohibited by Wis. Stat. § 948.08. … Although § 948.08 is colloquially referred to as prohibiting “solicitation,” the statute also specifically, and alternatively, prohibits “causing” a child to practice prostitution. As we have seen, “cause” is “a substantial factor” which need not be the first cause, nor the sole cause, of a child practicing prostitution.

¶22      The complaint discloses a pattern in which Payette’s conduct is a substantial factor causing young girls (including RS) to repeatedly and habitually engage in nonmarital sexual acts with him in exchange for something of value, namely the cocaine which he provided. There is no dispute that each victim was under the age of eighteen at the time of the various offenses. On more than thirty occasions, Payette received sex with RS in exchange for cocaine pursuant to “an understanding” between them. Payette’s claim that the complaint does not allege that RS was not a prostitute before their encounter, and that the complaint does not allege that he initially proposed the “understanding” of trading sex for cocaine, is irrelevant to the permitted inference that Payette’s conduct was a substantial factor causing the prostitution so graphically described.

The court also holds, superfluously given its just-announced conclusion that the behavior alleged in the complaint satisfied the elements of the offense, that Payette has no factual-basis attack on his plea, ¶¶25-35. See, e.g., ¶ 27 (“As we have explained, the complaint establishes a factual basis for the pleas”). The court lays out the test for challenging a factual basis: the defendant must “show, by clear and convincing evidence, that there is no factual basis that the conduct admitted to actually falls within the charge,” ¶26; the “whole record,” including the sentencing and defense counsel’s statements, may be considered, ¶27.


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